February 01, 2007

What's Coming Up

by emptywheel

Just some thoughts about what's coming up.

First, we've got the FBI Agent (her name is Bond--could this thing get any more perfect?), who will introduce Libby's FBI and GJ testimony. We'll hear long tapes of Libby's testimony. Fitz will pay particular attention to Libby's efforts to get Scottie to exonerate him in Fall 2003.

Then we've got "the mystery witness." I'll ask around if anyone has a better idea who it'll be. But I suspect it will be one of Edelman, Rove (both are referenced in the indictment, and Rove may be able to place the timing of the Russert conversation), or Matalin (to enter yesterday's "snake" comment) or Cheney.

And then we've got Russert. Why did Fitzgerald leave Russert for last? Does he believe he's going to be that compelling? Or is it just a matter of Russert's timing? In any case, both Prosecution and Defense seem to think that Russert will be very convincing. Is it because he hates Tweety?

The big question, at this point, is what Libby will do for defense. Will he take the stand? Will Cheney take the stand? If Libby doesn't take the stand, this may be over--one way or another--sooner than we thought.

Comments

Okay, I'm not even going to think about the impact of an acquittal, but as a complete layperson I must say I have no clue what a guilty verdict means for Fitzgerald. On one hand, it is clear that Libby obstructed the investigation, but it does not seem that the trial actually gets us much new information from Libby. On the other, there is clearly a lot of evidence about Cheney, a little about "the pres." and more than I expected pointing to a conspiracy -- evidence that Fitzgerald already had. I would be curious if any of you are willing to speculate, based on what you have seen in the trial, about whether prosecution success in this trial will mean there is any kind of a sequel?

I'm wondering why Edelman has yet to testify. His testimony would seem pretty key to me right now, as it would firmly establish that Libby KNEW the Plame topic was classified info. (although I think I read somewhere that others have speculated the Edelman conversation had to do with Joe Wilson's trip, and not necessarily Plame). Maybe Fitz made a mistake here?

And what's the rule on surprise witnesses? Does the defense know who this witness is (I assume they must, otherwise they would be asking for a continuance for discovery)?

As I read the liveblogging, and I'm not sure I saw all of his cross, Cooper apparently testified that Dickerson's source in Africa (presumably Fleischer) confirmed and/or corroborated, on July 11th, what Rove had said to Cooper earlier that day.

Dickerson, however, claims Ari walked up to the point of naming the wife, but didn't. Dickerson claims he was encouraged only to ask the CIA who sent Wilson. Dickerson says he only realized what all those "hints" were about when he spoke to Cooper by phone later that night, when Cooper told him what Rove had said.

How could the "hints" to Dickerson be construed as a confirmation, unless Ari indeed mentioned "the wife", too? "Go the CIA, find out who sent him" is not a confirmation of anything. Ari testified that when he mentioned Plame and the CIA, the three reporters (Dickerson, Gregory, Lipper) showed no reaction. It was a piece of information in a vacuum. The wife? What's the wife got to do with it?

Just as he says, the penny dropped for Dickerson when he spoke to Cooper that night. At that moment he knew Wilson's wife was going to be the story. That was the moment he took the hint.

I'm thrilled to be able to comment this early in a thread! Normally I get to emptywheel's stuff so late it looks like I just showed up to shoot the wounded.

We all know the typical criminal trial lawyer shares DNA with the good old American hotdog. Judges? Not so much.

From EW's addictive LBJ [Live Blogging Jive], Judge Walton strikes me a decent enough, smart enough, well-meaning enough sort of person. However, as this trial proceeeds, there are signs he is more than a little out of his league in the Show, calling balls and strikes on these heavy hitters.

I think yesterday presented a number of good examples. In some instances, it didn't seem to matter much if at all, for example: assuming I understood EW's LBJ, Judge Walton gave the jury conflicting messages on when to show up for brekkie the next day, which, if so, means some on the jury may lose confidence in his leadership - but which testing on how juries make decisions supports happens anyway and probably is one of the reasons the jury system works as well as it does.

But - there are times when it does matter.

Especially since this trial matters so much more than the typical perjury - where some a-hole gets his girlfriend to lie by saying, really, this is the truth, I was driving, but I left my driver's license in my other purse, see, and so when I heard the officer's siren I said to Rory, Rory change places with me, and Rory, he was so bombed he just done what I told him, so that's why it looked like to the officer Rory was driving when really he wasn't, and I just wanna add I'm sorry for the misunderstanding any everthing.

There were at least two incidents yesterday where Judge Walton, with or without Well's input [who from this vantage point seems to have a better read on how to push Walton's buttons than any other attorney in the trial], made rulings against the government on exhibits which, to my mind, were perfectly admissible under classic tests discussed in Wigmore's texts.

[I'm SOOO greatful Christy raised Wigmore first; I wouldn't want to have people think I'm just some law nerd.]

I have this tendency to blaaahhhhg on, so I'll just stick with first incident here:

It was when government attorney Zeidenberg was arguing for the admission into evidence of Libby's note that Mary Matalin said to him "Wilson's a snake".

This is my edited version of some passages which EW reported in LBJ [not as an improvement; just trying to work it all out]:

Walton: That’s a statement Mary Matalin made, not Libby. That's extremely prejudicial. [EW commented: You think?] That would buy [wic] into the government's theory that the defendant had amotive to harm JW, and that one of the things that he could do ... It's very prejudicial that, someone else's mindset.

...

Walton: It seems to have marginal probative value. The jury has to speculate that he was adopting her thought.

Zeidenberg: The question is - Is it UNFAIRLY prejudicial?

Walton: If I believe someone's a snake?

Zeidenberg: The fact that L would write it down.

Walton: You ain't going to win that one.

Either Walton hit a nice little absurdist tone there {I sure hope it was that.), I think Zeidenberg had it right.

First, the context of conversation:

If someone has a conversation with a fellow worker or friend for advice on how to deal with a situation with a person both have reason to be opposed to, the fact of that conversation is all admissible UNLESS it includes the recording of something that is more prejudicial than probative.

An example of "more prejudicial than probative" would be: In the course of that conversation Matalin was ask in passing after the condition of Libby's herpes sore from that wild weekend in Vegas with Mindy from the temp staff. The sad fact is that there are folks out there, maybe more than a few, who think less of persons who have extramarital sexual relations; a result of some kind of emotional logic which the law, quite reasonably, rejects as irrational.

Second, the context of the note:

If person L makes a note in L's own hand, of something person M said in L's presence, and there is something in L's notes that is relevant and admissible, then, in the absence of evidence that compels a different inference, the reasonable and proper inference is that person who took the notes did so because he or she wanted to be able to recall it later, and the jury must have all L's notes of that conversation in order to decide whether it will draw that inference.

An example of a situation that compels a differnt inference is: Say L writes down "Wilson is a snake", and it turns out that M has a pet, which L knows, but L always assumed Wilson was an imaginary friend that' really a pet volleyball, and during the course of this conversation about a person called say, Joe Wilson, L was to say to M, Hey, M, same last name as your imaginary friend that's really a volleyball, and M was to answer, No, I think you mixed me up with Tom Hanks, my Wilson is a python, big'un, 12 feet, just last week ate one of those illegals we hired for the landscaping project, you remember, you saw them when you were over. Well, if I was in L's shoes hearing that, I'm pretty sure I'd make a note as a wee reminder to keep an eye out for Wilson the next time I'm over for cocktails.

I think also Joe wilson has spoken to the issue of "hinting" as a violation. As long as it leads to the "answer" for the press it's a leak...if I understood J.W in regard to this. (I am not as good at the facts so my wishful thinking does occasionally get the best of me.) That said...

From my read of the Marcyscript, it is amazingly hard to tell whether Cooper actually heard from Dickerson on July 11 that Fleischer had told him positively about Wilson's wife. That is clearly what the defense wants to suggest, and Cooper goes along to some extent, but it never gets very explicit, and there are several moments where Cooper seems to suggest he had confirmation of the war on Wilson from Dickerson insofar as he provided more evidence of the White House disparaging Wilson, but not necessarily disclosing the information on his wife. Furthermore, Cooper might himself have an interest in letting it seem like he got direct confirmation from Dickerson since otherwise his journalistic practices looks more suspect. Finally, if we assume Dickerson's version of events were accurate, it's easy to imagine that Cooper could have taken Dickerson's report as a kind of confirmation, since there was so much hinting around and fixation about who sent Wilson, maybe Cooper saw that as a kind of confirmation (not defending that idea, by the way, just seeking possible explanations).

Of course, the other explanation is that Dickerson has just been wrong and in fact he provided Cooper with direct confirmation that the White House was explicitly saying that Wilson's wife sent him on the trip.

But can anyone discern any possible motive Dickerson would have to tell a deliberately false story on this?

Just guessing, but … Look! Up there in the sky! Is it a bird? A plane? No, it’s….it’s … Mystery Witness!

Well, it’s sure as hell not Dickerson. But, unlike Dickerson, this one never published any articles on any yakkity yak with Ari behind a bus under African skies; so there's nothing Team Libby has in hand to cross on - except a 3-way with Mitchell and Li'l Russ, one of the pillers of Tom MaGuire's NBC News Comical Conspiracy Tour theory - and that dog just won't hunt.

So why not get a dog who LIVES to hunt?

How about a talking dog? One we heard saying "Condi, what about.. ", and "But Condi, that makes no sense", and "Condi, do you seriously expect the American people to believe ...", all during Rice’s Tenet Toss with the WH press corp on AF1

[right before she called Tenet and 'fessed up: "Ah, George …ah … I did a ..bad … bad … thing. But… you got my back on this, right? Because, it looks to me that you're going to need a friend, someone to get you a job."].

A dog Bush won't go let off the leash for any follow-up questions anymore, because the damn dog keeps staying the damn course on his damn impertinent lines of questions.

A dog with a bone to pick after he got mauled in a Snow job even Tony, PhD Pond Scum (magna cum Fox) found a bit ... extreme.

A dog who smells that Libby and his team are trying to pen him in with a bunch of MSM WH press corp sheep.

Don't you think that would be a dog who’d love to fly in, slash open some arteries in the Bush-Cheney Body Politic, incur the ever-lasting gratitude of his li'l "boss", and take full advantage of an opportunity to show he's got balls?

As for Dickerson's motive to lie, I think we ought to look back at Time's's legal strategy. Time wanted the leak scandal to go away. Time's appeal to the Supreme Court had the incentive that if successful, readers would never hear the truth (notably, that Time had printed White House denials of involvement in the leak while knowing otherwise). Whether by accident or design, Time reporter Viveca Novak was running messages back to Rove's lawyer, so that his client's grand jury testimony could be suitably tailored.

Time figured it was bad enough that one reporter was involved. So why drag Dickerson and his African SAO source into this? Perhaps they figured that what Fitz didn't know wouldn't hurt him. (But they figured wrong, at least about Ari.)

I read Christy's post about how in the legal arguments, the defense sort of tacitly admits that Plame's status was classified, and that it now appears that none of the lawyers or the judge is in any way convinced otherwise, but yet the jury still can't hear that fact.

I'm wondering why that is, when it dawns on me, maybe she's still classified and the admin refuses to declassify it, thus it can't be shared with the public. But if that's the case, then how can they fall back on this insta-declassification theory for the NIE and possibly that note that Cheney (we think) ordered Libby to leak Plame's status to Judy?

The upshot is, I'm wondering if the admin, thinking it could totally hide any evidence of a crime using classified info, insta-declassified Plame's status, let Libby and/or Rove leak it, and then RECLASSIFIED her status such that it could never be used for evidence in any trial.

To anyone out of the loop, it would look like Plame's status was never declassified, but to the investigators, if they got too close, they admin would argue, well we're the unitary executive, we can do these sorts of things. Now granted, that would never go over very well politically, but if all the evidence is classified, how are you gonna prove it? And perhaps this is why Fitz never charged Libby with IIPA, though I also realize maybe he could never prove intent or knowledge that Plame was really covert.

The reason I say this is plausible, is because this is precisely what they did with the NIE, it was insta-declassified for Libby to leak to Miller (and possibly Woodward) and then reclassified after being "officially" declassified for the background presser.

Another thing to consider is this "Treat as TS/SCI" garbage that's come out of this trial. Is all classified (or politically damaging) info just willy-nilly given made up classifications by OVP, that can be changed at any time when it's convenient? I really would like to know.

I think we as a country really need to revisit the idea of classified info and build in some kinds of checks and balances over how things are classified and declassified that don't start and end with the President. There's too much at stake for it to all be in the hands of one person.

1-While there are some in the Bush Admin with pretty impressive and sophisticated organizing talents (Rove, just for starter), I see the key to whatever "success" might be attributable to the Bush Admin GOP joint venture as being not so much a product of the kind of broad-based intelligence that you suggest, but instead a product of that plus the complete willingness of those in the GOP to being occupied and used by the Bush Admin, PLUS a level of ruthlessness in the Bush Admin which is hard for honest folk to imagine, plus the reverberation of that ruthlessness beyond the point that even those in the Admin and in the GOP subjected to it would find it difficult to attribute it to 'intelligence' (I see it as more organic than intelligence-based.),PLUS a number of completely disingenuous but convenient partnerships - with the Christian fundement,a number of large players in the oil and gas areas of energy production, most of the companies that participate in the Future Combat Systems program, the Armour Holdings group of companies, certain "think tanks".

2-The Bush administration has some smart people, more truly crazy people, a lot more dumb people, a WHOLE lot more ignorant people, and a WAAAAYYYY more people with some serious emotional problems, many of those along the lines what shrinks call Axis II in DSM4. It would take a LOT of very smart people in critical positions to put together the kind of conspiracy envisioned in your post, the Bush administration doesn't have enough of those types in enough of those positions to pull this sort of thing off - and there are so many ways of getting to the same point which are so much less complicated, you're forced to the conclusion that the Bush Administration is too crazy to go with one of those.

3-I'm not convinced that ANYONE in the Bush Administration knows TO THIS DAY the precise nature of Plame's status at the relevant time - which is one of the major problems with statutes aiming to punish the outing of the most secret of U.S. spies.

It's inherent in NOC positions that they are completely deniable by anyone 'responsible' in the government [I of course use the word 'responsible' in a theoretical sense.] The less the number of those who know a person is operating NOC, the better. In theory, knowledge of that fact could be in as few as 3 persons: Plame, her handler, and the her enabler - and even her enabler may not know her identity, but just that of her handler. It's not really much different from how the FDA deals with its high-up gang informants.

4-The production of a record that would satisfy any reasonable third party or independent body that she was NOC at the time would necessitate evidencing how she was made NOC - a process which itself is classified.

5- Finally, I return one more time to the "stupid Bush Administration" theme: If Mr. Libby, as some suggest, is among the 'bright boys' in the Bush Administration, and such an expert in national security - How come he didn't figure all this out?

Somehow, I always thought that, the first time Libby was questioned by the FBI, he said he learned about Plame from Russert. Then, at some later date, he was reminded Cheney told him, and that's when he said he must have forgotten by the time Russert told him. The fact that, the first time he was questioned, Libby told a story that involved learning and forgetting about Plame makes his defense all the more horrible.

Does anyone know what Defense's "motion to quash Sanger" refers to at the end of Thursday's court proceedings? This phrase was sandwiched in a string of things Defense thought Prosecution was planning to perform by end of Tuesday. Defense implied it would affect Wednesday's choice of defense witnesses.

Great job typing nonstop for the last 2 wks in the Media Room at the Prettyman Courthouse.
Reading the posts is like drinking from a firehose. I have no idea how you are generating it all in real time. Rest your weary fingers but if you can still talk, keep the PoliticsTV.com videos coming.

My Amazon.com orders of Anatomy of Deceit took flight in all directions this week and are arriving at homes of family and friends. I think my copies will arrive tomorrow at my home. Looking forward to a good (and coherent, sidebar free) read.

I don't understand why my two local L.A. Barnes & Noble haven't called saying copies are on hand, nor why B&N still hasn't delivered (a separate mail order), nor Amazon (still another order). WTF? It seems like other people are getting theirs.

A copy could arrive tomorrow. Not that I'm complaining, because I have had this juicy trial coverage, which I confess I can barely keep up with (but I do, with every keystroke). Great work, emptywheel.

The POTUS in untouchable. Therefore, the numero uno guy that Fitz can get is Cheney. To get Cheney he needs at least 2 key witnesses. Any chance that Rove flipped on Cheney to save his own ass and Fitz is hellbound to flip Libby? Is this trial the way to flip Libby? And expose Cheney's involvement for the first time. If Libby flips and Fitz already has Rove in his hip pocket, game's over for Cheney.....right???

Even if Fitz loses this case (Libby is acquitted on all counts), doesn't the anti-Cheney shit that came out in this trial get "giftwrapped" (as someone above said!) straight to Congress? Yet another case for impeachment of Cheney, but vetted through a Special Prosecutor's investigation for added credibility! (Maybe Fitz could get another crack at Cheney by hiring on to the Congressional Committee that would handle the Cheney impeachment!)

I was surprised by the revelation of Libby's testimony in the beginning of the investigation that he may have discussed with Cheney about leaking Plame to reporters.

Which is a ridiculous statement from someone who stated that he forgot about Plame and that reporters told him about Plame. So if reporters were leaking to them and telling them that all reporters knew - their strategy was what? To leak to reporters? Yeah, right.

I was also remembering something emptywheel mentioned--that Sanger's interview of Libby about the 16 words occurred on July 2, 2003. Wilson's NYT op-ed was coming out in 4 days. I wonder if OVP had a heads up about the Wislon op-ed and wanted to leak information to Sanger to immunize themselves from Wilson's whistle-blowiing. Unfortunately for OVP Judy was in time out at the NYT during this period and couldn't publish an article on her own.

Two things. Remember, Martin said that Sanger thought he was working on a definitive story, so was a good target for a leak. It might well have been the NIE, but don't forget that a leak need not be of classified information.

I wonder if OVP had a heads up about the Wislon op-ed and wanted to leak information to Sanger to immunize themselves from Wilson's whistle-blowiing.

I'm inclined to doubt it. No reason to think they had a heads-up; we don't even know the NYT knew when it was going to run. Also the whole business was becoming a controversy partly independent of Wilson. So they had enough to worry about.